[2021] KEHC 6796 (KLR)
The court found that the applicant's bank account was not referenced in the criminal proceedings that led to his conviction and that there was no evidence or finding that the funds in the account were proceeds of crime or obtained fraudulently. The respondent did not oppose the application or provide any evidence to...
Source-derived case information.
- Citation
- [2021] KEHC 6796 (KLR)
- Parties
- Applicant: Dan Ochieng Ombewa; Respondent: SBM Bank Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E045 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling
- Outcome
- application allowed in part
- Judges
- DO Ogembo
- Legal Topics
- Account Freezing Orders, Release of Funds, Criminal Investigations, Banking Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dan Ochieng Ombewa
Applicant
SBM Bank Kenya Ltd
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling
Legal Issues
- 1 Whether the applicant is entitled to an order directing SBM Bank Kenya Ltd to unfreeze and release funds in his account.
- 2 Whether the funds in the applicant's account were obtained fraudulently or were the subject of criminal proceedings.
Ratio Decidendi
The court found that the applicant's bank account was not referenced in the criminal proceedings that led to his conviction and that there was no evidence or finding that the funds in the account were proceeds of crime or obtained fraudulently. The respondent did not oppose the application or provide any evidence to the contrary. The court was satisfied that the applicant had served his sentence and that there was no legal basis to continue freezing his account. Accordingly, the court allowed the application to the extent that the funds in the applicant's account should be released to him, as there was no justification for continued restriction.
Court Disposition
application allowed in part
Orders
- The funds belonging to Dan Ochieng Ombewa held in SBM Bank Account number [...] which was previously under investigations were not obtained fraudulently and shall forthwith be availed to him.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS CRIMINAL APPLICATION NO. E045OF 2019
DAN OCHIENG OMBEWA................................................................................APPLICANT
VERSUS
SBM BANK KENYA LTD................................................................................RESPONDENT
RULING
The applicant herein, DAN OCHIENG OMBEWA filed this application dated 10. 2.2021 on 18. 2.2021. The application, does not specifically state under which provisions it is made. It however seeks the following substantive prayers:-
i) THAT this Honourable court do issue an order to SBM Bank Kenya Limited to open and unfreeze the Account Number [...], maintained in the name DAN OCHIENG OMBEWA to accord him unlimited access to the said account in order to withdraw, deposit, pay, transfer money and or deal in any other way as he may deem fit.
ii) THAT the Honourable Court be pleased to make an order of declarations that the funds belonging to DAN OCHIENG OMBEWA and held in the said SBUM Bank Account number [...] which was previously under investigations was not obtained fraudulently and forthwith be availed to him.
The application is supported by an affidavit of the applicant. In the affidavit, the applicant has deponed that with 2 others, he was tried, convicted and sentenced to serve 1 year imprisonment in Criminal Case Number 1115/2013, Nairobi City Court. That the investigations never established that his above account held any fraudent funds, and same were never subject of the case.
As at the time of hearing of this application, it was submitted that the applicant had fully served his prison terms of 2 years.
The applicant served the Respondent with a hearing notice for this application. The Respondent accepted service of the same and duly signed and stamped same to acknowledge receipt of the hearing notice. An affidavit of service with the duly signed hearing notice has been filed in court.
The court considered the above facts and allowed the application to proceed in the absence of the Respondent who had been duly served.
I have considered the application and the submissions made by learned counsel for the applicant. I have also perused the Judgment of the lower court read out on 13. 6.2019. Indeed nowhere in the judgment is the instant account a subject. This application has also not been opposed.
I am therefore persuaded that the applicant’s application dated 10. 2.2021 has merit. I allow the same in terms of prayer 2.
For prayer 3, the applicant failed to convince this court of the particulars of the same. I decline to grant the same.
Costs of this application shall be in the cause. Orders accordingly.
D. O. OGEMBO
JUDGE
24. 5.2021.
Court:
Ruling read out in the presence of Mr. Lawi for the applicant, Mr. Wanjeri for Respondent (SBM Bank (K) Limited).
D. O. OGEMBO
JUDGE
24. 5.2021.